Standard Lumber Co. v. Madary's Planing Mill

FINCH, P. J.

This is an appeal from an order granting a temporary injunction.

The Sugar Pine Railway and a spur-track therefrom run through plaintiff ’s land. Included in said land and lying between the spur-track and plaintiff’s east boundary line is a triangular parcel about four hundred feet long from north to south and sixty feet wide at the north side. The land immediately east of the triangle belongs to the railway company. From the southerly point of the triangle for about two hundred feet in a northerly direction along the west side of the spur-track are skids for the purpose of loading lumber on cars. These skids seem to cover an area thirty or more feet in width. The plaintiff’s east boundary line runs diagonally through the space occupied by the skids, somewhat less than half of such area being on the plaintiff’s land.

Appellants state that the land which the defendants are enjoined from using had “become subject to the use of a

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common carrier of freight, the Sugar Pine Railway Company and its shippers.” Defendant Madary, in his affidavit in opposition to the motion for a temporary injunction, states that for more than four years “said lands have been . . . used under claim of right, by the Sugar Pine Railway Company, a common carrier, for its spur-track and for loading facilities to permit defendants, as shippers of lumber, to load their cars for shipment.” This evidence is contradicted by that of the plaintiff. D. H. Steinmetz, secretary and general manager of the plaintiff, testified that three or four different men were given personal permission by plaintiff to use its lands and the skidway for the purpose of loading cars, but that such permits had been revoked; and that, during the year 1919, Madary’s planing-mill used part of said lands of plaintiff, but without “right or permission or authority so to do.” If the evidence produced by plaintiff is true, and for the purposes of this appeal it must be taken as true, then the principle announced in

Southern California Ry. Co.

v.

Slauson,

138 Cal. 342, [94 Am. St. Rep. 58, 71 Pac. 352], and