Washington & Idaho Railway Co. v. Coeur D'Alene Railway & Navigation Co.

INJUNCTION — Discretion oir Court. — The granting of a preliminary injunction resting in the sound discretion of the court, the appellate court will not disturb the same where there is no abuse of discretion. (Syllabus by the court.)

APPEAL from District Court, Shoshone County. The lands or right of way of one railroad company cannot be taken as a right of- way by another railroad company, except for mere crossings, and then only for crossing purposes, and not for exclusive occupancy. {Cake v. Railroad Co., 87 Pa. St. 307; Pennsylvania R. Co.’s Appeal, 93 Pa. St. 150; In re City of Buffalo, 68 W. Y. 167; In re New York Gent. B. B. Go.,, 77 N. Y. 248; In. re New Yorh etc. B. Go., 20 Hun, 201;, Ilousatonic R. Go. v. Lee etc. B. Go., 118 Mass. 391; Worcester etc. B. Go. v. Railroad Gommrs, 118 Mass. 561; Boston etc. B. Co. v. Lowell Lawrence Co., 124 Mass. 368.) Laying tracks-witbin tbe company’s location is a "taking” within the statutes. (Worcester etc. B. Co. v. Railroad Gommrs., 118 Mass. 561.) Courts of equity will interfere to prevent interference with corporate franchise or private property, where such interference is-in the nature of a nuisance, or amounts to an exclusion, and when the intruder has no title or color of title. (Commonwealth-v. Pittsburgh etc. B. Go., 24 Pa. St. 159, 62 Am. Dec. 372;. Bigelow v. Bridge Go., 14 Conn. 565, 36 'Am. Dec. 502;, O'Brien v. Railroad Go., 17 Conn. 72; Gory v. Railroad Go., 3-Hare, 593; Mohawk Bridge Go. v. Utica etc. B. Go., 6 Paige,. 554; Bell v. Railroad Go., 25 Pa. St. 161, 64 Am. Dec. 687.) Where a party claims a franchise under a statute, and is in the possession and enjoyment of such franchise, equity will interpose to protect and secure the enjoyment of such franchise,, because it affords the only plain and adequate remedy. (New-burgh Turnpike Road v. Miller, 5 Johns. Ch. 101, 9 Am. Den 274; Boston Water Power Co. v. Boston etc. R. Gorp., 16 Pick. 525.) The granting or refusing the preliminary injunction rests in the sound discretion of the court. (Hicks v. Michael, 15 Cal. 108, 117; Slade v. Sullivan, 17 Cal. 102, 106; Gtoldstein v. Kelly, 51 Cal. 301.) And this discretion should always be exercised in favor of the party most liable to be injured, (nicks-v. Gompton, 18 Cal. 210; 1 High on Injunctions, secs. 598, 601;. 3 Wait’s Actions and Defenses, 683, 688; 4 Field’s Lawyers-Briefs, secs. 253, 254.) When an injunction restraining the use of a railway would not only be productive of great injury to the-railway company and to the public, but would result in no corresponding advantage to anyone, not even to the person asking-such relief, it will not be granted. (1 High on Injunctions,- sec. 598; 3 Wait’s Actions and Defenses, 723.) The supreme court-will not interfere, with the action of the court below, unless- • there has been an abuse of discretion. (Parrott v. Floyd, 54 Cal. 534; Efford v. Railroad Go., 52 Cal. 277-279; Goolot v. Railroad Go., 52 Cal. 65; Patterson v. Supervisors, 50 Cal. 344; Payne v. McKinley, 54 Cal. 532; White v. Nunan, 60’ CaL 406.) Equity will not restrain trespass, unless injury is irreparable, and cannot be compensated in damages. (Waldron v. Marsh, 5 Cal. 119; Schurmeier v. Railroad Go., 8 Minn. 113 (Gill. 88), 83 Am. Dec. 770; Burnett v. Whitesides, 13 CaL 156; Tomlinson v. Rubio, 16 CaL 202, 206; Tevis v. Ellis, 25 CaL 519; Leach v. Day, 27 CaL 643, 646; Mechanics’ Foundry v. Ryall, 62 CaL 418; Roebling v. Bank, 30 Fed. 744, 745.) Nor where there is an adequate remedy at law. (Schurmeier v. Railroad Go., 8 Minn. 113 (Gill. 88), 83 Am. Dec. 770; Richards v. Kirkpatrick, 53 CaL 443; Canal Go. v. Kidd, 37 CaL 307; Rohm v. Minis, 40 CaL 422; San Francisco v. Beide-man, 17 CaL 464.)