Calvert v. State

• Decision Date: 18 May 1892
• Citation: 52 N.W. 687,34 Neb. 616
• Parties: T. E. CALVERT ET AL. v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

52 N.W. 687

34 Neb. 616

T. E. CALVERT ET AL. v. STATE OF NEBRASKA

Supreme Court of Nebraska

May 18, 1892

ERROR to the district court for Lancaster county. Tried below before FIELD, J.

Judgment reversed and the proceedings DISMISSED.

John H Ames, for plaintiffs in error:

The mandatory injunction and order or writ of assistance, as provisional remedies, are absolutely unknown to our system of jurisprudence. Even in the absence of statutory definition and limitation, neither of these writs or orders has hitherto been used by courts of equity except for the purpose of carrying into effect their final decrees. (Farmers Ry Co. v. Reno O. C. & P. R. Co., 53 Pa. 224; Audenried v. R. Co., 68 Id., 370; Gale v. Abbott, 8 Jurist, N S. [Eng.], 987; Child v. Douglas, 1 Kay [Eng.], 578; Washington Uni. v. Green, 1 Md. Ch., 97; N. Y. Print & Dying Est. v. Fitch, 1 Paige [N. Y.], 97; Bosley v. Susquehanna Canal, 3 Bland [Md. Ch.], 65; Att'y Gen. v. R. Co., 2 Green Ch. [N. J.], 136; Att'y Gen. v. Patterson, 1 Stock. [N. J.], 624; Locomotive & Mach. Wks. v. R. Co., 20 N.J.Eq. 379; 3 Dan. Ch. Pr. 1767; 1 Ves. Jr., 140; Blakemore v. C. & N. Co., 1 Myl. & K. [Eng.], 154; High, Inj., 15; Bracken v. Preston, 1 Wis. 584; Story, Eq. Pl., 374, 375.) Even a decree of a court of equity on final hearing which sought to do what was done by this order, would be void. (Tawas v. R. Co., 44 Mich. 479; Henderson v. Marcell, 1 Kan. 137; Moosic v. R. Co. 13 A. [Pa.], 915.) Judge Norval had jurisdiction to grant the temporary injunction on the answer and counter-claim. (Cox v. Tyler, 6 Neb. 397.)

F. J. Bush, and J. R. Webster, contra:

The locus quo of the controversy was in actual use as a public street. A supreme judge of the state of Nebraska has no jurisdiction to issue an injunction in a cause pending in the district court, unless it be of that character of causes of which the supreme court has original jurisdiction. The order allowed by Judge Norval was not an injunction nor was it intended to be. The injunction was not violated. (Code, ch. 4, secs. 258, 260.)

OPINION

MAXWELL, CH. J.

On the 20th of August, 1890, the North Lincoln Street Railway Company brought an action against the Chicago, Burlington & Quincy Railroad Company, the Fremont, Elkhorn & Missouri Valley Railway Company, and the Missouri Pacific Railway Company, the cause of action being set forth as follows:

"The plaintiff is a street railway corporation, duly organized and incorporated for building, constructing, owning and operating a street railway in the city of Lincoln and its vicinity. The defendants are railroad corporations, respectively operating and owning lines of railway entering the city of Lincoln or passing through the same. The plaintiff has from the city of Lincoln a franchise for the constructing of a railway on North Eleventh street, and other streets of the city of Lincoln, and desires to construct a line of street railway on Eleventh street from W street to Y street, and has constructed and nearly ready for operation about four miles of street railway running from W street north to Grandview addition in the city of Lincoln, and desires to continue and connect its road to the central part of the city of Lincoln at O and Twelfth streets, or in that vicinity. The plaintiff has purchased and is now putting into place machinery for operating its railway by electricity for its motor power, and for that purpose has purchased motors and engines and all appurtenances for the operation of its road by electricity and is in process of constructing its power house. The road of the plaintiff will be of great public utility for the residents north of the railway tracks of the defendants in obtaining rapid transit from the suburbs into the city of Lincoln. The plaintiff has already invested about $ 35,000, and is about to invest for the completion of its railway the sum of $ 60,000 additional. The defendant's roads cross Eleventh street and it is necessary for the plaintiff to lay its track across the track of the defendants, of which there are several tracks in that vicinity. But the plaintiff does not propose without the advice and approval of the proper authorities to break or disconnect the rails of the defendants, but the plaintiff proposes to construct its road across the tracks of the defendants by raising its rails at the point of the crossing about one and one-half or two inches above the rails of the defendants and to cut the plaintiff's rail so that the wheels of the defendants cars can pass through the space in the plaintiff's rails without in anywise impeding or hindering its passage or safety. But the defendants colluding and conspiring together to make the completion of the plaintiff's road greatly more expensive, and much delaying the completion of the same, refuse the plaintiff permission to cross their tracks in the manner aforesaid, or to permit the plaintiff to cross their tracks at grade in any manner whatever; that the manner of the proposed crossing is the same as is the crossing now used by the Lincoln Rapid Transit Company, operating its said cars at said crossing by steam; that the manner in which the plaintiff proposes to cross the defendant's tracks is the same that the defendant, the Chicago, Burlington & Quincy Railroad Company, and the Fremont, Elkhorn & Missouri Valley Railway Company consented that the said Lincoln Rapid Transit Company might cross their tracks; and the manner in which the plaintiff proposes to cross the said railway tracks is in all things precisely the same as has been used and operated without any accident or danger for three years last past by the Lincoln Rapid Transit Company over the defendants' tracks. So that the safety of the manner of crossing proposed has been demonstrated by use. But the defendants insist that the plaintiff shall construct what is termed a viaduct or bridge of sufficient height so that the cars of the plaintiff shall pass over the trains and cars of the defendants with sufficient elevation to permit the highest car and engine to pass under such viaduct. But the plaintiff shows that to construct such viaduct it is necessary to make a long and steep grade to approach the same in order to give sufficient elevation, and that such grade will greatly and inordinately add to the expense of the operation of the plaintiff's road in procuring sufficient power to lift its trains at such height over the defendants' tracks; and, moreover, for such viaduct to be strong and durable and safe will be of very great expense, costing as much as four or five miles of street railroad way, and such viaduct, unless made wide enough to be used for a public roadway for the passage of teams and vehicles, will very greatly impede the highway, which is a thoroughfare of very considerable resort and much used by the people living within and north of the city of Lincoln for entrance into the city, and it is against the public interest that a viaduct, unless also to serve as a public road, should be constructed in Eleventh street. And the city of Lincoln has now no means available whereby it can obtain money for the construction of a viaduct of sufficient width to serve as a public road, or street, as well as for the tracks and cars of the plaintiff; that the only reason wherefore defendants refuse and conspire to impede the plaintiff in making the entrance of its road into the central part of the city at grade over the defendants' tracks, is that the defendants pretend it will greatly add to the danger of collisions, and that they will have to maintain a watchman at said crossing, but in truth and in fact, said street at the point where plaintiff desires to cross is now an open public highway used constantly for the passage of teams and vehicles, and at said crossing the defendants keep constantly night and day, while teams are passing, a watchman with signals to warn persons passing when trains are about to pass said crossing, so that the expense of the defendants will not in anywise be increased, as they already maintain one or more watchmen at said crossing and no additional watchman will be rendered necessary; that the manner in which it will operate its cars by electricity is such that the cars are under perfect control of the driver, who stands on the front platform of the car while in motion, and by a mechanical appliance termed a switch, is enabled to stop instantly or even reverse at full speed the motion of the car, so that the street railway car as it will be equipped and operated, is more manageable than any other vehicle which is wont to cross the defendant's tracks, and can be instantly stopped or reversed upon signal so to do; that there is about to be held in the city of Lincoln the annual state fair of the state of Nebraska, which will convene in the city of Lincoln, a great mass of people whose transportation through the city of Lincoln and its suburbs speedily, pleasurably, and cheaply is not only to the interest of the people who may assemble, but is of great interest to the city of Lincoln itself. The plaintiff, if permitted to cross the defendants, tracks, expect to have their road in operation at the time of the state fair, and the same being the first electric street railway in the city of Lincoln will be a novelty which guests assembled will desire to see and avail themselves of for transportation. And the novelty of such street railway transportation will also cause, as plaintiff anticipates, a large amount of traffic upon its line, and be of great profit, which the plaintiff will wholly lose if it is delayed for even two or three days in doing the mechanical work in constructing said crossing. The plaintiff moreover shows that north of the city of Lincoln, at Grandview, the northern terminus of ...