California Pacific Railroad v. Central Pacific Railroad

By the Court, McKinstry, J.: The plaintiff, filed its petition in the District Court, asking for the condemnation of certain lands of the defendants; to which- one of the latter, the Central Pacific Eailroad Company, answered by cross-complaint. The cross-complaint concludes with a prayer, which is, in effect, that petitioner- be restrained from continuing the proceedings already commenced, and that the petition for condemnation be denied-; also, that “ the petitioner be enjoined from building, constructing, or maintaining a bridge in front of the defendant’s wharf.” This appeal is from an order denying an injunction preliminary to the final hearing in the Court below. It is obvious, that so far as the application is based on the averment of facts which would constitute a legal defense to the petition when the matter should come on for hearing upon the merits, the District Court committed no error in refusing the temporary injunction. The cross-complaint does not refer to an order placing the petitioner in possession of the premises of the defendant, nor does the defendant base its claim to affirmative relief upon the existence of such an order. The injury alleged to be [553]threatened (with the exception hereinafter mentioned) is an injury which will be done under the final order of condemnation, if the order shall be granted. Any facts, therefore, which will induce the District Court to refuse the order of condemnation will prevent the injury, and these facts can be presented at the final hearing.

The portion of the defendant’s prayer, above quoted, which relates to the building of a bridge, is based upon allegations in the cross-complaint, which show, as defendant claims, that the petitioner has commenced the erection of a “wagon-road bridge,” to abut upon the lands of defendant sought to be condemned; that the petitioner has no legal right to erect the bridge; and that the same is obstructing, and will destroy, the navigation of the river in front of that portion of the defendant’s premises, which is used for the purpose of receiving into its cars freight and passengers from steamboats and vessels lying at the wharf, and of discharging freights and passengers.

In so far as the facts thus alleged show that the petitioner has no power to condemn the lands of defendant, or that the lands are not necessary or proper for the purposes named in the petition, they also could be used at the trial before the Court on the day set for the appointment of commissioners, and there was no necessity for an injunction.