Seaboard Air Line Railway Co. v. Thompson

BeowN, J.

The plaintiff contends that the land in controversy is a part of its right of way, and that it has become necessary in the discharge of its duties to the public as a common carrier to occupy it for the operation of its train service.

. The plaintiff contends that its predecessor, the Raleigh and Gaston Railroad Company, under the act of 1852, ch. 145, is granted “the same means 'of purchasing or condemning land, etc., as are provided in the act incorporating the North Carolina Railroad Company,” including the right to acquire title by failure of the landowner to apply for an assessment within two years after the track is finished.

The plaintiff further contends that section 30 of chapter 82 of the Public Laws of 1848-49, incorporating the North Carolina Railroad Company, became a part of the charter of the Raleigh and Gaston Railroad Company by virtue of the enactment of section 18 of chapter 140 of the Laws of 1852. Section 30 of the act incorporating the North Carolina Railroad provides as follows:

“That all lands not heretofore granted to any person, nor appropriated by law to the use of the State, within 100 feet of the center of said road, which may be constructed by the said company, shall vest in the company as soon as the line of the road is definitely laid out through it, and any grant of said land thereafter shall be void.” It is set forth in the complaint and not denied that at the time of the construction of the connection tract by the Raleigh and Gaston Railroad Company, the property in controversy in this connection belonged to the State of North Carolina, and the effect of the above section was to vest in the Raleigh and Gaston Railroad, its predecessor, a right of way of the width of 100 feet on each side of the center of its track.

The answer of defendant denies the principal allegations of the complaint and admits the possession of the defendant. Upon considering the pleadings and affidavits offered, the judge made the findings and order above set out, holding that the construction of the road should not be enjoined until the final hearing, and requiring plaintiff to enter into an indemnifying bond.

It appearing to us that since the order of the Superior Court was made the plaintiff has constructed its track according to the terms of said order and is now operating its trains over it, we are not disposed to reverse the order and dissolve the injunction, but will let the controversy over the land be settled upon a final hearing and not upon an appeal from an interlocutory order. Serious injury to plaintiff and to the qublic may result from an interference now with the operation of the railway. Whatever damage that can be done to defendant has already been sustained, and to now dissolve the injunction would do defendant no good. His injury cannot be said to be entirely irreparable and he is fully protected by a good and sufficient bond.

Courts are loath to interfere with the construction and operation of railroads and other works of great public importance. Commenting upon the exercise of this jurisdiction, Mr. High,-sec. 598, says: “Courts of equity are frequently called upon to interfere by injunction with the construction of railroads in such manner or under such circumstances as would be productive of irreparable injury. In exercising its jurisdiction over cases of this nature a court of equity will in the use of a sound discretion balance the relative inconvenience and injury which is likely to result from granting or withholding the writ, and will be largely governed by such circumstances in determining upon the relief. And where an injunction restraining the use of a railway would not only be productive of great injury to the railway company and to the public, but would result in no corresponding advantage to any one, not even to the persons asking such relief, it will not be granted. So where the work of constructing a railway is of great magnitude, and one involving large expense, if it is apparent that the injury which would result to defendant by granting the injunction in case the result should prove it to have been wrongly granted, would be greater than that which would result to complainant from a refusal of the injunction, in the event of the legal right being proved to be in his favor, the court will not interpose.”

Again, the same writer says: “From the peculiar nature of works of public improvement and the serious injury that may result from any unwarranted interference with their construction, the jurisdiction in restraint of such works is exercised with great caution, keeping constantly in view the damage that may result from improperly restraining their operation.” High on Injunctions sec. 615.

The same principle has been stated by our Court as follows: “It is contrary to the policy of the law to use the extraordinary powers of the court to arrest the development of industrial enterprises or the progress of works prosecuted apparently for the public good as well as for ¡Drivate gain.” Lewis v. Lumber Co., 99 N. C., 11.

There are other cases in which this salutary principle is recognized. Navigation Co. v. Emry, 108 N. C., 130. In this case the Court further declares: .“The courts have in many cases not unlike the present one granted relief by injunction pending the action, and when the evidence has left the material matter in dispute in doubt, this Court has generally directed the order granting such injunction to be affirmed. Here the defense alleged by the defendants is more than doubtful, but we are not to be understood as expressing any opinion upon the facts further than 'as may be proper in directing an affirmance of the order appealed from. Parker v. Parker, 82 N. C., 165; Lumber Co. v. Wallace, 93 N. C., 22; Lewis v. Lumber Co., supra; Evans v. R. R., 96 N. C., 45; Whitaker v. Mill, ibid., 2.”

The track having been already constructed in accordance with the order of the Superior Court, and the trains being in full operation over it, if we were to dissolve the injunction, the defendant could not remove the track and stop the operation of the trains by force, and under the circumstances of this case, we would not consider it advisable to interfere until the facts are all established and the rights- of the parties have been adjudicated upon final hearing.

Affirmed.