Lund v. Idaho & W.N.R.R.

• Decision Date: 13 February 1908
• Citation: 93 P. 1071,48 Wash. 453
• Court: Washington Supreme Court
• Parties: LUND et al. v. IDAHO & W. N. R. R.

93 P. 1071

48 Wash. 453

LUND et al. v. IDAHO & W. N. R. R.

Supreme Court of Washington

February 13, 1908

Appeal from Superior Court, Stevens County; D. H. Carey, Judge.

Suit by H. M. Lund and others against the Idaho & Washington Northern Railroad to enjoin the construction of a railroad. From a decree granting the injunction, defendant appeals. Petition in appellate court to suspend injunction pending appeal. Granted.

E. H Belden, for appellant.

E. J Cannon, for respondents.

CROW J.

The Idaho & Washington Northern Railroad, a corporation, acquired from the city of Newport, in Stevens county, Wash., a franchise over certain of its streets, and proceeded to construct a steam railroad across Fourth street immediately in front of certain lots belonging to the plaintiffs H. M Lund and L. M. Lund, his wife. Thereupon the plaintiffs commenced this equitable action, in which, on final hearing a decree was entered enjoining the defendant corporation from constructing or operating its railroad in front of their premises until it shall have paid to them the damages caused to their property. The defendant has appealed.

The decree provides that, if an appeal shall be diligently prosecuted, the injunction shall be suspended pending such appeal, so as to permit the running of construction trains, but that otherwise it shall be in full force and effect from and after its entry. The appellant has petitioned this court to enter an order suspending the injunctive relief granted until the final determination of its appeal. A show-cause order having issued, the respondents have appeared and resisted appellant's application, which is now before us for consideration.

It appears that appellant's franchise from the city of Newport permits it to construct a railroad across Fourth street; that its railroad does not touch respondents' lots, being located about 29 feet therefrom; and that as constructed it is neither above nor below the street grade. Respondents predicate their right to an injunction upon their contention that appellant has, in violation of section 16, art. 1, of the state Constitution, damaged their private property without just compensation having been first made or paid into court. The appellant contends that it has neither taken nor damaged their property, that it is entitled to enter upon and occupy the street under its franchise granted by the city, and that it is not interfering with any private property rights which it can be required to condemn or which it has any authority to condemn. These contentions present the issue to be determined upon the final hearing of the appeal. It appears that appellant's road has been constructed and is now being operated for a distance of 45 miles or more; that in such operation it passes near respondents' lots on Fourth street; that appellant is prosecuting the business of a common carrier, but that it entered upon Fourth street without respondents' knowledge, consent, or acquiescence. The appellant strenuously contends that, if it is not permitted to continue its business as a common carrier over Fourth street pending this appeal, it will suffer great and irreparable loss, and that, if a suspension of the injunction is not granted, it will be compelled to settle with respondents upon their own terms, without regard to the validity of their alleged claims, and that it will thus be deprived of the fruits of its appeal, which it is now prosecuting diligently and in good faith.

The injunction is prohibitory, and cannot be superseded as a matter of right under any statute of this state. We have repeatedly held that a trial court will not, by the mandate of this court, be required to fix a bond superseding a prohibitory injunction. State ex rel. v. Stallcup, 15 Wash. 263, 46 P. 251; State ex rel. Byers v. Superior Court, 28 Wash. 403, 68 P. 865; State ex rel. Gibson v. Superior Court, 39 Wash. 115, 80 P. 1108, 1 L. R. A (N. S.) 554, 109 Am. St. Rep. 862. In State ex rel. Burrows v. Superior Court, 43 Wash. 225, 86 P. 632, it was held that the superior courts of this state, in the exercise of their equitable jurisdiction, having all the powers of the English...