Brock Railroad v. Brookville & Mahoning Railroad ( 1907 )

Per Curiam,

The learned judge below found as facts, inter alia, “ That the coal now being mined and transported over the plaintiff’s road will be exhausted within the next two years, when said railroad will be abandoned. There is some evidence about a lower stratum or vein of coal, but it never has been worked in that locality, and the evidence is not persuasive that it ever will be. If, as it now appears, the maintenance of the plaintiff’s railroad is dependent upon the shipment of coal from the Brock mines, it will be abandoned by the time, or very shortly after, the defendant’s road is completed and ready for operation.” And, farther, that the plaintiff has “ leased to the Erie Railroad Company its railroad, with all its appurtenances and equipment, for a term of four years, which, according to the testimony now before the court, covers the time said railroad will continue to exist, and the said Erie Railroad Company, so far as it has the power and so far as its rights are involved, has granted the defendant company, upon certain conditions and restrictions, the right to cross said leased road at grade.”

It thus appears that the complainant, having no present interest which is injured, is not now in position to sustain this action. Grade crossings are, however, opposed to the policy of the law, and the bill should therefore be retained for further proceedings should the situation be changed. In the meantime the order dissolving the injunction is affirmed.