Baucus v. Albany Northern Rail Road

Harris, Justice.

The plaintiffs ask for an injunction restraining the defendant's from excavating the road to any greater extent than is actually necessary for the crossing and construction of their rail road. The affidavits of the engineer and assistant engineer show that this is all the defendants are doing. Of course, no such injunction is necessary. If granted it would avail nothing.

The plaintiffs also ask that the defendants may be restrained from constructing a wooden bridge. It does not appear that this is not the proper mode of restoring the road to its former usefulness. But whether it is or not, this is not the proper mode of enforcing this requirement of the statute. If the defendants, after having made their crossing shall fail to restore the road to its former usefulness, the plaintiffs will be entitled to redress upon instituting affirmative proceedings. Injunction is not the„proper remedy, at least not in anticipation of delinquency.