11 Kan. 186 | Kan. | 1873
The plaintiff in error brought its action against the defendant in error to recover damages for cutting down three telegraph-poles, forming part of a line along the plaintiff’s railroad, and other offenses of a like nature. As the defendant threatened to cut down other poles if the plaintiff put them up, an injunction was asked restraining defendant from interfering further with the building of the telegraph line. A temporary injunction was granted, which on motion was afterward dissolved. This order dissolving the injunction is the one brought to this court for review. The propriety of granting an injunction depends upon whether the plaintiff has the right-of-way over the land, as claimed in its petition. If it has the right-of-way one hundred feet wide, as claimed, it has a right to build its telegraph line within that limit as an adjunct to the railroad, and a most convenient, if not necessary aid in operating the road; and it has also a right to have its legitimate business protected from the wrongful acts of defendant. The injunction was granted on plaintiff’s petition, duly verified by affidavits, and was dissolved on affidavits which were evenly balanced as to whether plaintiff has the right of way. Under- these circumstances we think the injunction ought not to have been dissolved. The plaintiff was in possession; was operating a great public highway; the telegraph was necessary to its safely doing its business. The traveling public, as well as the plaintiff company, was interested in the building of the telegraph line. Under these circumstances we think the injunction should have been continued until the rights of the parties could have been determined upon a final hearing of the case. At present the rights of the parties do not sufficiently appear to authorize any decision therein; but one or two remarks seem necessary to avoid misconstruction. The plaintiff in error insists that defendant in error is estopped from denying that the company had the right-of-way. With the imperfect presentation of the facts in the record we do not feel willing to pass upon this ques
