Toledo, Ann Arbor & North Michigan Railway Co. v. Detroit, Lansing & Northern Railroad

Campbell, C. J.

In this case a circuit court commissioner of Livingston county allowed an injunction, without notice, to prevent defendants from interfering with the intended execution of a crossing under their track, which the bill averred had been secured by condemnation proceedings, and which would involve an interference with the running of defendants’ cars during the construction of a bridge. For the taking of the property, and all damages, the commissioners appeared to have awarded the sum of six dollars.

' The whole purpose of the bill. is to prevent defendants from hindering the execution of this crossing.

A motion' was made to dismiss defendants’ appeal on the ground that this was not a decree or final order. We denied the motion. An order allowing an injunction is of the same character, by whomsoever granted, and must be judged by its effect. This injunction operated, and was intended to operate, all the aid to complainant which the bill called for; and the whole bill was framed substantially to secure a passage across defendants’ right of way speedily. It had all the effect of a final decree. ■

It needs no discussion to show that an injunction against a party’s holding his own possession is the same thing as turning him out of possession, and is utterly illegal before *11 final decree. ‘Whatever right a complainant may have in other courts, or in other ways, a court of equity cannot change the possession of lands in conflict from one party to another until the merits have been finally passed upon. It seems singular that any officer of the law should undertake such a usurpation of power. It has been sufficiently settled by several decisions of this Court, and is an elementary rule which needs no explanation: People v. Simonson, 10 Mich. 335 ; Barry v. Briggs, 22 Mich. 201 ; Lewis v. Campau, 14 Mich. 458 ; Sailing v. Johnson, 25 Mich. 489 ; Port Huron & G. Ry. Co. v. Judge of St. Clair, 31 Mich. 456 ; Arnold v. Bright, 41 Mich. 207 ; Tawas & B. C. R. R. Co. v. Judge of Iosco, 44 Mich. 479 .

The order must be vacated, and declared void from the •beginning, for this reason. But it would be improper to pass by some other violations of law which appear on the face of this proceeding.

The rule regulating the. powers of injunction masters gives them no authority to grant injunctions without notice, unless the peculiar exigencies of the case require it “for manifest reasons, to bo shown by affidavit Bule 112.

This means, necessarily, reasons based on facts shown by persons testifying on knowledge, and punishable forperjuiy if they swear falsely. In the present case not a single fact of any kind is sworn to by Mr. Ashley, who made the affidavit ; and it is nothing short of absurdity to give as a reason for not waiting a fear that something may be done by a defendant, in case the complainant should do something not yet done. The complainant could manifestly wait, and so prevent the mischief ; and a delay of a few hours, or a day or two, in order to give notice, was entirely within complainant’s power, even assuming the case a proper one for an in junction pendente lite, which it was not on any theory here presented. •

Further than this,-the bill itself does not contain an averment of any act or threat by the defendants, on anything but information and belief, and is supported by no affidavit or *12 oath upon knowledge. This cannot support an injunction under any circumstances.

We have at the present term changed rule 112 so as to prevent the hasty granting of injunctions by commissioners, and to harmonize the practice with what was originally intended when the system of injunction masters was borrowed from New York. The abuses arising from the careless allowance of injunctions are very serious, and have caused much harm and damage. We have no information from these ex parte proceedings concerning the merits of the contending parties on the main controversy, but the present proceedings are illegal throughout.

The order must be reversed, and the injunction declared void. Appellants are entitled to costs.

The other Justices concurred.