Detroit & B. Plank-Road Co. v. Detroit Citizens' St. R. Co.
| Decision Date | 24 November 1893 |
| Citation | 97 Mich. 583,56 N.W. 940 |
| Parties | DETROIT & B. PLANK-ROAD CO. v. DETROIT CITIZENS' ST. RY. CO. et al. |
| Court | Michigan Supreme Court |
Application by the Detroit & Birmingham Plank-Road Company against the Detroit Citizens' Street-Railway Company and others for a writ of mandamus. Relator petitioned for and obtained an order to show cause why respondents should not be punished for contempt in violating a restraining order issued pending the final hearing. Respondents discharged.
Frank B. Leland, for relator. Russel & Campbell, for respondents.
The order heretofore made in this cause, for an alleged violation of which an order to show cause has been issued, if not in terms a continuation of the injunction as originally issued, was substantially so. As that injunction is not made a part of the record, we cannot assume that it was broader than the prayer of the bill. The petition in this cause alleges that it followed such prayer. The prayer asks that "an injunction issue restraining the defendants from entering upon said road for the purpose of constructing an electric railway track or incumbrance of any kind upon said road, or in any way preparing to lay such track." If, as contended by the relator, this should be construed to apply to the entire line of road, it cannot be said to cover the operation or repair of a track heretofore built and used, although repairs in paving the street had required the temporary removal of a portion of the same. We think that respondents were justified in so construing it, and that the acts complained of were in the replacing the track temporarily removed, and not in constructing, or preparing to construct, a new road in a place not heretofore occupied by said road. We therefore conclude and adjudge that the defendants were not in contempt as alleged, and they are hereby discharged, with their costs to be taxed.
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