Lake Shore & M. S. R. Co. v. New York C. & St L. Ry Co.

• Decision Date: 05 September 1881
• Citation: 8 F. 858
• Parties: LAKE SHORE & MICHIGAN SOUTHERN RY. CO. v. NEW YORK, CHICAGO & ST. LOUIS RY. CO.
• Court: U.S. District Court — Western District of Pennsylvania

8 F. 858

LAKE SHORE & MICHIGAN SOUTHERN RY. CO. v. NEW YORK, CHICAGO & ST. LOUIS RY. CO.

United States Circuit Court, W.D. Pennsylvania.

September 5, 1881

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 are 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 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...