| U.S. Cir. Ct. | Mar 22, 1881
At the last session (1880) of the legislative assembly, an act was passed granting the defendant, — the Oregonian Eailway Company, limited, — among other tilings, the use of the triangular-shaped piece of ground lying between the east line of blocks 112 and 113 of the city of Portland and the east bank of the Wallamet river, the same being, as appears from the map, about 520 feet long and 50 feet wide at the south end and 300 feet at the north end, and known as the “Public Levee,” and dedicated to public uso as a levee by a map and ordinance of the plaintiff — the city of Portland — recorded March 6, 1869, “to be held, used, and enjoyed for occupation by track, side-track, water stations, depot buildings, wharves, and warehouses,” and such other “erections” as may be found necessary or convenient in the
In pursuance of this act the defendant entered ujaon the premises and commenced to prepare the ground for the uses ' specified in the act. The plaintiff, claiming the act of the legislature to be in excess of its power, and therefore void, on January 31, 1881, commenced a suit in the state circuit court for this county, perpetually to enjoin the defendant from occupying or using the premises thereunder, and on the same day obtained an 'ex parte order for a temporary injunction, restraining the defendant as prayed for in the' bill, which was served o.n February 2d, thereafter.- Afterwards, on February 17th, the suit, on the petition of the defendant, was removed to this court, and the transcript filed herein on February 25th. On March 17th, the defendant filed a petition asking that the injunction heretofore granted be modified so as to allow it the use of the premises for a track and side tracks, to facilitate the construction of its road from Portland to the point where it will connect with the junction of the sections thereof already constructed between a point in Marion county and Brownsville, Linn county, on the east side of the Wallamet river, and Dayton and Sheridan and Dallas, on the west side, stating that it is the owner of the east part of block 71, lying immediately north of said levee, and has a wharf thereon for the loading and unloading of sea-going vessels; that the iron for constructing said railway must be imported in such vessels, and that if allowed the use of the levee as aforesaid, in connection with said block 71 and wharf thereon, it can receive and forward said iron at a great sav
There is no. doubt of the power of the court to grant this petition at this stage of the proceedings; for, although the cause is not for trial or hearing in this court until the first day of the next term, — the second Monday in April, — yet it is in this court from the date of the removal, and such conservatory acts as the allowance or modification of an injunction may be had therein at any time thereafter. Mahoney Mining Co. v. Bennett, 4 Sawy. 289" court="None" date_filed="1877-08-20" href="https://app.midpage.ai/document/mahoney-min-co-v-bennett-9299356?utm_source=webapp" opinion_id="9299356">4 Sawy. 289; New Orleans City R. Co. v. Crescent City R. Co. 5 Fed. Rep. 160.
The presumption is in favor of the validity of the act, and at this stage of the litigation this presumption ought to have weight. At least it will not do to assume that the act is invalid, but only that it may be so, There are no particular equities in the bill which the defendant must answer before it is entitled to a modification of this injunction. At best, it is only a suit to try the title of the defendant to property which is claimed to be subject to a public easement, and a preliminary injunction is only allowed to' preserve the property for such use, in case it is determined that the defendant has no title thereto. Therefore the defendant ought not to be any further restrained, until the invalidity of its title is determined, than is necessary to preserve the property for the purpose to which the plaintiff claims it is devoted. The property is an unimproved piece of ground, of which no practical use has ever been made as a public levee or landing, and probably never will be, until it is improved by the erection of wharves and warehouses thereon. The business of loading and unloading vessels is not done in this country upon open quays or
Indeed, there is but little reason for a preliminary injunction in this case at all. As has been said, tbe public is making no use of tbe property as a levee or otherwise, and cannot until it is improved; and if tbe defendant was even permitted to go on and build a depot tliereon, as well as a track and side tracks, what barm would result to tbe plaintiff from it ? If tbe final determination is against tbe defendant, it may be compelled to remove them, (C. S. U. Co. v. V. & G. H. W. Co. 1 Sawy. 482;) or, what is more likely, the plaintiff may keep tbe improvements as a part of its property and thereby gain what .the other loses. Nor-is there any suggestion that tbe defendant is insolvent, and unable to respond in damages for any injury it may cause to tbe property of tbe plaintiff. If this were a public levee or landing in fact as well as name, and tbe defendant was materially interfering with tbe public use of the premises by its proposed “erections” and “constructions,” there would be ground for restraining it until its right to do so was finally determined. But, as it is, there is no public use to be disturbed, and tbe actual controversy is confined to tbe right of tbe defendant to tbe exclusive use of tbe premises; and their use by it in the meantime, in such a way as to cause no injury thereto, and at least not to materially interfere with tbe public use, if any, ought not to be restrained.
Again, in tbe consideration of this question, it ought npt
Let the injunction be modified so as to permit the defendant to construct and operate a track and side tracks over and upon the premises during the pendency of this suit; it first giving bond in the penal sum of $5,000, with one or more sureties, to be taken and approved by the master of this court, conditioned that it will, upon the order of this court or upon the entry of a final decree in this suit against the right and claim of the defendant to the use of said premises under and by virtue of said legislative act, remove said track and side tracks from said premises, and leave the same in as good a condition for use as a public levee as they now are; or the defendant may deposit, in the registry of this court, United States bonds of the par value of $5,000 as a security for the performance of said acts.
See, also, In the Matter of the Petition of the Barnesville & Moorhead Ry. Co., 4 Fed. Rep. 10.