Denver & R.G.R. Co. v. United States

• Decision Date: 07 July 1903
• Docket Number: 1,874.
• Citation: 124 F. 156
• Parties: DENVER & R.G.R. CO. et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

124 F. 156

DENVER & R.G.R. CO. et al. v. UNITED STATES.

No. 1,874.

United States Court of Appeals, Eighth Circuit.

July 7, 1903

Syllabus of the Court

The purpose of a preliminary injunction is to protect and preserve the rights of all the litigants with the least injury to each until the controversies between them can be tried and finally decided.

A preliminary injunction to maintain the status quo may properly issue whenever the questions of law or fact to be ultimately determined in a suit are grave and difficult, and injury to the moving party will be immediate, certain, and great if it is denied, while the loss or inconvenience to the opposing party will be comparatively small if it is granted.

A preliminary injunction may be modified when by such a modification the injury or inconvenience of one or more of the litigants may be decreased without thereby increasing the danger of loss or injury to their opponent.

Joel F Vaile and E. F. Richardson (Edward O. Wolcott and Charles W Waterman, on the brief), for appellants.

Marsden C. Burch and John H. Knaebel, for appellee.

Appeal from the Circuit Court of the United States for the District of Colorado.

The opinion of the Circuit Court, delivered orally by Hallett District Judge, was as follows:

In the pending suit of the government against the Denver & Rio Grande Railroad Company et al., I have reached the conclusion that the injunction ought to be allowed. I do not doubt that the respondent has in some measure and degree exceeded the authority conferred upon it by the acts of Congress under which it has acted. I shall not at this time undertake to set down the particulars upon which that judgment rests, leaving those matters for consideration at the final hearing of the cause. I do not doubt, also, that there may be a remedy in equity for such matters as are charged in the bill of complaint. The doctrine as to the remedy in equity for cutting timber trees, despoiling lands of their timber, which prevailed in the early days of New York and New Jersey and other Eastern states, has, in my judgment, no application to an arid country, such as this is. I think, furthermore, that it has no application whatever to government lands, and to a proceeding on the part of the government to preserve any part of its lands for the use of citizens in the way in which they are ordinarily granted. I need not go upon that subject any further.

But there is another ground of jurisdiction which seems to me to be entirely satisfactory, if there were no other. These depredations upon the government land are ordinarily committed by what are known as 'sawmill men,' and they are of a fugacious and predaceous disposition, which renders the action of trespass at law entirely useless in any effort to collect the value of the timber. This consideration controls very largely as to what shall be done with the timber which is now upon the ground, which has been put into logs or into lumber, and is held by several of the defendants who are sawmill companies or corporations. I think that it is not reasonable or prudent to deliver this lumber, in the amount and value as stated, over to these parties, to be disposed of as they shall think fit. At the same time, I am not quite able to assent to the proposition made by counsel for the government, that the lumber may well enough stand until the determination of the suit. These suits must last a long time. They must go through this court and through courts of review, and this takes considerable time. There is great danger of fire and other destruction meanwhile. So that I think some steps ought to be taken towards disposing of this property. Counsel has disclaimed the idea of a receiver, and wisely so, I think, because I do not believe that the case stands for a receiver-- at least not as yet. I think that we may wisely enough take steps towards getting an inventory of the property where it is now, and when that shall be completed we may give these companies who have possession of it an opportunity to dispose of it in some way, and under some rules to be prescribed at that time, if they shall desire to do so. This inventory may be taken by an officer of the court, by and with the aid and assistance of these parties, or otherwise, as they may prefer. If they do not care to participate in the inventory, we can go on without their assistance; but if they wish to make such an application to the court hereafter, as they will be allowed to make, to take steps towards selling the property or disposing of it otherwise under the act of Congress, perhaps we may be inclined to allow the Rio Grande Company to take such parts of it as have been manufactured for its use. At present I am inclined only to appoint an officer to proceed with this inventory, and to report to the court hereafter when he shall be able to complete it. For that purpose Mr. Marshall Johnson will be appointed, who, I am advised, is proficient in figures, and knows how to do such work. Otherwise the injunction may stand until the further order of the court in the terms in which it has been heretofore allowed. The government cannot in any case give bond, and cannot be required to do so here.

Before SANBORN, THAYER, and VAN DEVANTER, Circuit Judges.

SANBORN Circuit Judge.

This is an appeal from an order granting a preliminary injunction restraining the Denver & Rio Grande Railroad Company and the other defendants, who are its agents, from cutting and removing timber from certain lands of the United States under the act of June 8, 1872 (17 Stat. 339, c. 354), which granted to the predecessor of this railroad company the right to take from the public lands adjacent to its right of way stone, timber, earth, water, and other material required for the construction and repair of its line of railway and telegraph line, and under the act of March 3, 1875, 18 Stat. 482, c. 152, Sec. 1 (U.S. Comp. St. 1901, p. 1568), which granted a similar right to this and other railway companies to take timber required for the construction of their railroads.

The Denver & Rio Grande Railway Company, the predecessor of this defendant, by its articles of incorporation secured the franchise to construct and operate eight lines of railway, which were numbered and specified in the articles. The first and sixth of these lines were the Denver & Rio Grande Railway and the San Juan Railway. The San Juan Railway connects with the Denver & Rio Grande Railway, and these and other railways named in the articles now form the railway system of the appellant the Denver & Rio Grande Railroad Company. The agents of this company who are named with it as defendants are logging railroad companies, which constructed and are operating railroads extending from the San Juan Railway to places distant from 10 to 30 miles from it, sawmill companies, and officers of these various corporations, who were all together engaged in cutting timber from the land of the government distant from 20 to 20 miles from the San Juan Railway, under orders of the railroad company, and in manufacturing this timber into the ties and bridge timbers required by the railroad company for the construction and repair of its railroads. In the manufacture of the logs thus taken from the government land into ties and timber, the mill companies were appropriating to their own use, manufacturing into shingles, laths, boards, and other lumber, the side cuts taken from the logs in making the ties and bridge timbers, and those logs which after they arrived at the mills proved, on account of rot or other defects, inapplicable to the use of the railroad company. The railroad company was using the ties and timber it obtained in this way upon parts of its system other than the San Juan Railway, and the government insisted that it had no right to take timber from lands adjacent to one of the lines specified in the original charter to construct or repair any other of those lines.

The railroad company had the admitted right to take timber from lands adjacent to its railroad to repair that portion of it which was constructed on or before June 8, 1882 (19 Stat. 405, c. 126). But the portion of its railway thus constructed was a narrow-gauge railroad, and the company was taking the ties and timber from lands which it claimed were adjacent to make this narrow-gauge railroad a broad-gauge railway. The United States insisted that this was the taking of timber to construct a new railroad, and not to repair an old one.

The application for the injunction was heard upon the bill, answer, and opposing affidavits, and it presented these questions:

(1) Were the lands from which the defendants were taking the timber adjacent to the right of way of the Denver & Rio Grande Railroad Company?

(2) Had the railroad company the right to take timber from government lands adjacent to its right of way to make the narrow-gauge railroad which was built prior to June 8, 1882, over into a broad-gauge railroad, or to repair a broad-gauge railroad after such a change had been made?

(3) Had the railroad company the right to take timber from lands adjacent to one of the lines of railway numbered and specified in the...