252 F. 29 | 6th Cir. | 1918
(after stating the facts as above).
We do not so view that opinion, and we cannot accede to the position now taken. What we there said regarding the unitary character of the whole system had to do mainly with the jurisdiction of the District Court in Kentucky to order an injunction having extraterritorial effect, but also had some bearing on the question whether the discretion to enjoin was rightly exercised. However, the bill of complaint and the argument and our opinion all rested upon the existence of local right as an essential foundation. It was alleged, and at that time we were-required to assume, that the telegraph company had the right to condemn in Georgia and in Alabama and in the other states named, as well as in Kentucky, and "the relief granted was solely for the preservation of the body of the property in its existing condition until the legal right could be adjudicated in due course. Unless there had been a legal right to condemn in Kentucky, there would have been nothing for equity to protect in Kentucky; and the same thing is true of Alabama. It is self-evident that a defendant cannot be enjoined from a proposed act, unless that act will work an unlawful injury to a plaintiff ; and it now appears that the telegraph company, not only has no interest, but claims none, in the 600 miles of right of way, and that the railroad company has the unquestioned right to take possession of its own property and evict the telegraph company therefrom. The harm resulting to the Kentucky lines from the destruction of the Alabama lines is damnum absque injuria. If I lease three fields from three several lessees, and operate them as one unitary farm, and tire lease of one expires, its loss impairs the value of the other two; but that does not entitle me to keep it — not even until I can settle a dispute as to the lease of one of the others. We are clear that there is no foundation, in law or in fact, upon which the injunction as to the 600 miles can rest.
Not only is the usual rule to be observed that preliminary injunctions should not issue unless a reasonably clear case of necessity and otherwise irreparable injury is made out, but this case makes the rule especially appropriate. It is proposed here to issue (or, what is the same thing, to refuse to dissolve) an injunction which extends beyond the territorial limits of the court, which restrains the parties from proceeding in another state as they otherwise might, and which, in substantial effect, prevents the courts of another state from awarding and executing relief with regard to property in that state as they might otherwise do. To this consideration is to be added the fact that the telegraph company has actually applied for and obtained from the proper Alabama court the complete and full measure of temporary in-jmictional protection which it is asking in this case from the court below. Not only does this fail to indicate that the injunction from the court below is necessary to prevent irreparable injury, but it rather shows that the injunction here demanded will be of no use whatever, unless the courts of the state where the property is situated decide that the telegraph company has no rights which entitle it to such protection.
When we start with the consideration that, by withholding for five years what it now concedes is its only claim of right while prosecuting the case on other claims, the telegraph company has all but closed the door to its present appeal for the aid of equity, and then further observe that it is asking the court to go to the-very limit of jurisdiction in proceeding extraterritorially and in affecting the courts of another state, and then observe still further that it is already fully protected
4. We do not find ourselves embarrassed, in 'reaching this conclusion, by the rule to which we referred at the outset that an appellate court will not disturb the action of a trial court, except in case of error of law, or so serious a misapprehension of facts as to be of similar effect. A careful, reading of the thorough opinion of the trial judge indicates to us that his conclusion to maintain die injunction as to the entire 1,000 miles is based essentially upon that construction of our former opinion which led him to think that the unitary character of the telegraph system was of itself enough to justify protecting the whole system, without regard to the existence of local right; and this construction we think erroneous. We further observe that the District Judge considered the amended bill to show that, since the decision of the Alabama Supreme Court had determined “the law respecting condemnation, tire plaintiff had discovered that it for many years had had and now has” the right of easement which, by its amended bill, it is asserting. We cannot find in the bill, nor in the briefs of counsel, any assertion that these easement rights were not fully known at the time of filing the original bill and ever since; and it is apparent that the supposition that the easement had been newly discovered, instead of having been voluntarily withheld, would give a sufficiently different color to the claim of the telegraph company, so that this might have been the turning point in the action of the District Judge. ,
6. As the telegraph company has had ample time, since the condemnation question was finally decided in the Supreme Court of Alabama, within which to move its lines, we observe no reason why it should receive further protection from the court below for that purpose, or why it may not get from the Alabama courts whatever similar protection may be proper as incidental to the easement controversy; but we do not decide this matter, and it will not be inconsistent with the mandate to go down, if the District Court shall think proper to enjoin interference as to the 600 miles, or the 400 miles, or both, for the time reasonably necessary for the telegraph company, acting diligently and
The order below, refusing to dissolve the injunction as to Alabama, is reversed, and an order will be entered in accordance with this opinion. The order granting leave to hie the amended bill was discretionary, and is affirmed. Appellant will recover the costs of this court.
Upon the former appeal, it appeared that a small fraction of the Alabama lines was protected by an Alabama injunction; but the matter was comparatively negligible, and we found no occasion to consider the effect of an Alabama injunction covering the whole remaining held of controversy.
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