49 F. 114 | 8th Cir. | 1892
This is an appeal from an order granting and continuing a preliminary injunction, as authorized by the seventh section of the act of March 3,1891, creating this court. The sole question for our consideration is whether the existing injunction was properly awarded, and that is to be determined on the case made by the bill and answer, and the affidavits and exhibits filed in the lower court on the hearing of the motion. The record before us shows that the appellant is a corporation created and existing under and by virtue of the laws of the state of Arkansas, and that by an act of congress approved June 1,1886, (24 St. p. 73,) it was authorized to locate, construct, and operate a railway, telegraph, and telephone line through the Indian Territory, be
“Be it enacted * * * that the Kansas & Arkansas Valley Railway, a corporation organized and existing under the laws of the state of Arkansas, and being empowered by act of congress approved June first, eighteen hun dred and eighty-six, to construct its railway from a point on the eastern boundary line of the Indian Territory, at or near Ft. Smith, Arkansas, through said territory, in a north-west direction, to a point on the northern boundary line of said territory, with tile power to build a branch as therein provided, the construction and operation of which said line of railway involves the necessity of constructing a bridge across the Arkansas river, in the Indian Territory, from a point at or near Ft. Smith, be, and the said Kansas & Arkansas Valley Railway, its successors and assigns, are hereby, authorized and empowered to construct said bridge across said river, and to maintain and operate the same as a railway, passenger, and wagon bridge.”
After the approval of the act last referred to, the railway company proceeded to construct a bridge strictly in accordance with its provis
The foregoing statement discloses the material facts on which the appellees predicated their right to injunctive relief. The case is stated more at length in the opinion of the lower court. 46 Fed. Rep. 546. It is evident that the existing injunction cannot be sustained on the ground that the railway company had begun to construct approaches to its bridge suitable for foot-passengers and vehicles, outside of the limits of its right of way, and on lands at the time occupied by the appellees. The injunction as awarded is clearly too broad to be sustained solely on that theory, for the reason that it in effect restrains the railway company from permitting wagons and foot-passengers to have access to its bridge over any part of its right of way heretofore mentioned, which is the only method of gaining access to the bridge that seems to be possible. The right to an injunction, however, is not rested exclusively or mainly on the ground last suggested. It is contended in behalf of the appellees, that the railway company has no authority to permit any part of its right of way to be traveled over by vehicles or foot-passengers for the purpose of reaching the bridge, because that would be subjecting the right of way to a new use, without compensation; and, furthermore, that a court of equity, when appealed to, must of necessity award an injunction to prevent the imposition of such additional servitude. We are of the opinion, in view
By the act of March 15,1890, supra, congress, as we think, impliedly authorized the railway company to use its right of way as a road-way for ordinary travel, so far as might be found necessary to give vehicles and foot-passengers access to its bridge. The railway company, therefore, has legislative sanction for permitting the new use of which the appellees complain. The act declares that the structure thereby authorized may be used as a “railroad, passenger, and wagon bridge;” and it recites, in substance, that the grant of the right to construct a railroad through the Indian Territory, by the previous act of June 1, 1886, “involved the necessity of constructing a bridge across the Arkansas rivor, in the Indian Territory, * * * at or near Fort Smith.” From these provisions it must be inferred that congress intended that the north end of the bridge should abut against appellant’s right of way where it intersected the Arkansas river, and form a mere prolongation of the right of way across the stream. Under these circumstances, we must presume that congress intended that the railroad right of way should be used by wagons and, foot-passengers to such extent as might be found necessary to enable them to reach the bridge, and that appellant should permit such use. To indulge in any other presumption would he to hold that congress has granted a right that cannot bo enjoyed, as there is no mode by which general travel can reach the bridge, without passing to some extent over the railroad right of way. Furthermore, the moving papers in the cause show that the railway company only proposes to use its right of way for general travel for a short distance back from the river, where the railroad crosses a publie highway, and that the opening of the bridge for the use of foot-passengers and vehicles, as well as for railroads, is a matter of such great public concern that the citizens of Ft. Smith have already donated a considerable sum towards the erection of the structure. It must also be borne in mind that the alleged new use to which the appellant proposes to devote a portion of its right of way in no wise interferes with •the possession of any lands now held and occupied by the appellees; neither does it alter any of the physical aspects of the place. The new
In view of the considerations to which we have adverted, we are satisfied that the complainants below were not, as a matter of right, entitled to injunctive relief, and that the existing injunction should not have been granted, even though we concede, for the purposes of the present decision, that the additional use to which the railway company proposed to devote its right of wa3r was of such character as entitles the complainants to some additional compensation. It was undoubtedly a matter of much public concern to the citizens of Ft. Smith and the Indian Territory that vehicles and foot-passengers should be allowed to use the bridge as soon as possible, and that necessitated the use to a limited extent of appellant’s right of way. When congress authorized the latter use (as we think it did) it was not incumbent on it to require compensation for the additional servitude to be paid in advance of it§ actual enjoyment by the public, even if some additional compensation is recoverable. Cherokee Nation v. Railway Co., 135 U. S. 641-659, 10 Sup. Ct. Rep. 965. Furthermore, the appellees have a right of action at law to recover such additional compensation as they may be entitled to. Railway Co. v. Twine, 23 Kan. 591; Railroad Co. v. Baker, 45 Ark. 252; Lewis, Em. Dom. § 623, and citations. But the most important consideration bearing on the right to an injunction is the fact that, in the exercise of the authority granted to it by congress, the railway company does not propose to intrude upon the possession of any lands now occu